Leah Litman on the Supreme Court's Shadow Docket and 'Hot Shadow Docket Summer'

Supreme Court's Ideological Project

• 🎯 The Supreme Court's recent decisions, particularly in cases like Skrmetti, reflect a pattern of denying discrimination against historically subordinated groups while focusing on perceived discrimination against conservative bases.
• 🏛️ A core theme is the justices' nostalgia for the past, aiming to revive legal and societal norms from before the feminist and civil rights movements.
• ⚖️ The methodology of originalism is critiqued for its origins in opposing segregation and its tendency to roll back civil rights advancements by focusing on historical legal protections that excluded marginalized groups.

Analysis of the Skrmetti Decision

• 💡 The Skrmetti decision, upholding Tennessee's ban on gender-affirming care for trans minors, is highlighted for its disingenuous logic, with the court denying that the law constitutes sex discrimination despite its explicit references to sex and gender.
• 🚫 Three justices (Thomas, Alito, and Barrett) indicated a willingness to go further, suggesting that even if discrimination were present, the law should be treated as presumptively constitutional, signaling potential for more targeted discrimination against the trans community.
• 📜 The decision is seen as an extension of previous patterns, where justices may abandon originalism when it doesn't serve their desired outcomes, resorting to other means to reach specific results.

Justice Amy Coney Barrett and Neil Gorsuch

• 🧐 Justice Amy Coney Barrett, despite some conservative criticism, is assessed as a reliably conservative vote, with her jurisprudential differences often relating to procedural or technical issues rather than core ideological stances.
• 🤫 Justice Neil Gorsuch's silence in the Skrmetti decision, particularly after authoring Bostock (which extended Title VII protections to LGBTQ+ individuals), is noted as surprising, suggesting a view of his own opinions as definitive without needing further explanation.

The Shadow Docket and Future Trends

• 🚨 The Supreme Court is increasingly active on its "shadow docket" (emergency docket), handling significant cases without full briefing or argument, leading to a "hot shadow docket summer."
• ⚖️ The court is expected to narrow the availability of nationwide injunctions, potentially by imposing stricter procedural requirements, which could impact uniform legal application, especially in areas like immigration.
• ⏳ Addressing issues like the shadow docket and the court's ideological direction is a long-term project requiring sustained public education, organization, and individual participation in civic life.

What People Can Do

• 📢 Public education and awareness about the Supreme Court's impact on elections and policy are crucial for long-term change.
• 🤝 Organizing at the local level, engaging in voter education, and building networks between elections are vital steps.
• ✨ Individuals are encouraged to use their unique talents—whether in protest, commentary, art, or politics—to contribute to the ongoing fight for justice and equality.